More than a Motion: Tanudjaja and the Fight for Affordable Housing (Part 2)

In May 2014, social justice activists and lawyers, representatives of non-profit organizations, federal and provincial government lawyers and interested public crowded into the Ontario Court of Appeal to hear an appeal of a motion to dismiss in Tanudjaja v. Canada. The courtroom was so packed that a satellite courtroom had to be opened. Members of the Canadian HIV/AIDS Legal Network were in attendance, since the Legal Network intervened in the case as part of the ARCH Disability Coalition.

Why all this interest in a motion to dismiss?

The Tanudjaja case began when four homeless or inadequately-housed people and the Centre for Equality Rights in Accommodation (CERA) (“the applicants”) brought a challenge to the Ontario Superior Court, claiming that the Canadian and Ontario governments’ failure to have an adequate housing strategy violated section 7 and section 15 of the Canadian Charter of Rights and Freedoms.

In response, the federal and provincial governments brought a motion to dismiss the case – which was granted by Justice Lederer. This decision meant that the case would come to an end, without the evidence ever being presented or a judgment issued. The applicants decided to fight to have their day in court and appealed this decision.

Tanudjaja v. Canada is gaining a lot of attention because the Court is being asked to rule that the federal and provincial governments should take steps to reduce homelessness and inadequate housing, or at least not do anything to exacerbate the situation. Since the Charter came into effect in 1982, courts have been reluctant to recognize positive rights. These are rights that would force the government to take a certain action, and social and economic rights, such as the right to shelter, health, or basic income. This is the applicants’ major challenge.

Hoping to prevail, the applicants and intervening lawyers have presented the following new and creative legal arguments:

The applicants are not asking the Court to order the governments to take a specific action. Instead, they are asking that the Court order the governments to adopt a housing strategy, addressing the problem as the governments themselves see fit.

The applicants are challenging a “bundle” of government actions and changes (rather than a specific law or policy) which has led to increased homelessness and inadequate housing. The applicants cleverly argue that by challenging this bundle of actions, they are giving the government leeway to decide what changes to undertake to address the housing crisis.

The applicants are careful not to argue that there is a “free standing right to housing,” as courts have been reluctant to recognize this in the past. Instead, they argue that the Court should see the consequences of a lack of a housing strategy as being unconstitutional; in other words, that governmental inaction is leading to reduced life expectancy, death, and poor physical and emotional health.

The applicants argue that because the case deals with the Charter, Canada’s most important human rights law, the bar for dismissing the case should be set higher than for other types of cases.

When analyzing whether there has been a violation of the applicants’ equality rights (under section 15), the Court should be guided by the principles of substantive equality. Substantive equality requires that governments take into account the “potentially differential impacts on different groups in society to ensure that government action does not exacerbate pre-existing disadvantage.”[1]

The applicants’ rights should be interpreted considering Canada’s international obligations, including the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities.

Why does this motion matter in the big picture?

Tanudjaja deals with important social justice issues, but its fate now depends on how judges interpret civil procedure rules. Under the Rules of Civil Procedure, a judge can order that a case will not continue to a full trial if it “discloses no reasonable cause of action,”[2] meaning that it is “plain and obvious”[3] that the case cannot succeed. In a motion to dismiss, judges assume that all of the alleged facts are true. This means that, technically, procedural rules were the focus of the May 2014 hearing, rather than the merits of the case.

The way in which the motion to dismiss rule will be interpreted in Tanudjaja has important consequences for future cases addressing social justice issues and access to justice for all. This is because the case attacks systemic issues. As frontline social justice advocates well know, poor, marginalized and vulnerable people are most often systemically disadvantaged as a result of a complex web of interacting laws, policies, administrative rules and programs. Take the case of Ms. Tanudjaja as an example: the fact that she lives in an apartment that is in disrepair, has bedbugs and is too expensive is not the result of a single government policy. Instead, it is because of inadequate social assistance and shelter allowance, a 10-year long waiting list for subsidized housing, and a landlord and tenant board whose decisions make it easy to evict tenants instead of protecting their rights.

If the Court allows the case to go to an actual trial, this will open the door for other groups to challenge systemic problems. However, if the Court agrees with the trial judge’s decision to dismiss, this will prevent systemically disadvantaged groups from bringing their claims to court.

If our justice system is to be accessible to all, then issues that affect the poor should not be dismissed before arguments are even heard in the courtroom. The fate of this groundbreaking case now depends on how three appellate judges interpret civil procedure rules. We hope that the judges will consider the case’s importance for social and economic rights in Canada, and for access to justice for all.

Thanks to Silvia Neagu, McGill University law student intern, for drafting this blog entry.